February 25, 2002

Prison Terms

What is going on at Guantanamo Bay? While the Bush administration has made a few missteps in its war on terrorism, its decision to send some captured Taliban and Al Qaeda members to the U.S. naval base in Cuba--and its refusal to grant them prisoner-of-war (POW) status--has become a public relations fiasco. "The U.S. is placing these people in legal limbo," complains Amnesty International. "They deny they are prisoners of war, while at the same time failing to provide them with the most basic protections of any person deprived of their liberty." Even the British are upset. "It is very important for those people to be held according to the principles of international law," British Foreign Secretary Jack Straw has said of the Guantanamo prisoners. "[T]hat is the way in which one can maintain the moral ascendancy here, and the reverse is also true."

Criticisms of the Guantanamo Bay policy fall into four categories--none of them convincing. The first concerns allegations of actual mistreatment. After captured Taliban and Al Qaeda members first began arriving in Guantanamo on January 11, the Pentagon released photos of the prisoners in shackles and blacked-out goggles; cries of "inhumanity" quickly followed. The British newspaper The Independent likened Guantanamo Bay to a concentration camp; the Mail on Sunday tabloid ran the headline "TORTURED." But in fact, as has since become evident, the conditions at Guantanamo are far from inhumane. The pictures that sparked the outrage were taken shortly after the prisoners' arrival, while they were in transit to their cells--and most likely to revolt. Once the inmates settled in, the goggles and shackles were removed. Moreover, the prisoners are entitled to hot showers, prayer mats, and three meals per day. They also receive medical care. (One prisoner even underwent surgery for painful glaucoma resulting from an injury sustained five years ago.) Little wonder then that Taliban being kept in the Shibergan prison in Afghanistan recently shouted to an Associated Press reporter, "We want to go to an American prison!"

The second criticism focuses on international law. Although the United States may be treating the prisoners humanely, some are troubled that the prisoners have not all been officially afforded the protections offered by the 1949 Third Geneva Convention. But the full range of Geneva Convention privileges belong only to "lawful combatants" who, among other requirements, have a "fixed distinctive sign recognizable at a distance" and conduct "their operations in accordance with the laws and customs of war." These criteria clearly don't apply to members of Al Qaeda, and arguably not to members of the Taliban either. Nonetheless, President Bush recently decided that the Convention will in general terms apply to captured Taliban members at Guantanamo, but not to captured Al Qaeda. Yet neither group will be afforded POW status. (As POWs, the prisoners would be entitled to automatic repatriation to their home countries when the conflict ended.) This compromise has not satisfied the International Committee of the Red Cross (icrc), which maintains that the Geneva Conventions require that in cases of doubt a "competent tribunal" decide whether captives are entitled to POW status. But the icrc is not the only arbiter of what the Convention entails; other legal scholars argue that the Convention mandates a competent tribunal only when fact-specific questions of an individual's status are at issue, such as in instances of deserters or those who have lost their identity cards. "If you stipulate that these detainees are members of the Taliban and Al Qaeda," says Ruth Wedgwood, an international law professor at Yale, "then there is no fact-specific question for a tribunal to decide."

The third criticism leveled at American policy is that if the United States does not grant the Taliban and Al Qaeda members POW status, Americans taken prisoner in future conflicts will not be treated in accordance with international law. But even leaving aside the fact that the United States is acting in accordance with international law at Guantanamo, it's hard to imagine a theoretical U.S. adversary that would adhere to international law if only the United States had read the Geneva Convention differently at Guantanamo. Saddam Hussein? The Taliban? A contempt for not only international law but also civilized norms is, after all, the one characteristic most American adversaries share.

The final complaint brings us back to where we started: public relations. Even if the prisoners are being treated humanely, and even if the Bush administration is acting in accordance with international law, some argue that the perception of what's going on at Guantanamo makes the United States look bad. But this criticism essentially asks America to abandon its own moral judgment--presumably in favor of the judgment of those who have opposed the war at every stage. But this is not a public relations war. It is a war.